LEGAL ADVICE – Issuu by Car crash lawyer



Where are the limits?

Anyone benefiting from a pension paid by invalidity insurance and/or accident insurance knows that these benefits are periodically examined and, if necessary, redefined. But where are the limits to a pension review really? This article tries to answer it.

Michael Bütikofer, lawyer and notary

Like every morning, Jan W. (fictitious name) goes by motorbike to his office on this fateful day in 2009. He loves the winding road that connects his home to his place of work. But on the way, he is forced to slow down because of a semi-trailer. In a slight right turn, as he begins to overtake him, he does not see the car coming in the opposite direction, and it is the accident. Jan W. is seriously injured. The doctors diagnosed him with incomplete paraplegia.

Reduction of UVG daily allowance

Jan W. follows several months of primary rehabilitation at the Swiss Paraplegic Center in Nottwil (SPC). Besides the fact that the motorcycle accident completely changed the life of Jan W., this event leads to many legal questions. As Jan W. was seriously injured in the accident and it cannot be ruled out that he broke the rules of the road during the tragic overtaking maneuver, a criminal investigation is opened against him.

The criminal investigation is carried out by the competent public prosecutor. After lengthy checks, the latter comes to the conclusion that a conviction would be unreasonable, given that Jan W. is already heavily affected by the direct consequences of the traffic accident he caused. The public prosecutor therefore drops the charges against Jan W. As an employee at the time of the accident, Jan W. is insured in accordance with the Federal Law on Accident Insurance (LAA). His insurance company proceeds with the necessary clarifications after receipt of the declaration of loss. The central question is whether and to what extent Jan W. is entitled to daily compensation in the event of an accident. Informed of the criminal investigation conducted against Jan W., the accident insurance initially paid him no full daily allowance. If it can be shown that Jan W. is solely responsible for the accident, she reserves the right to reduce the daily allowance.

In order to examine a possible reduction in benefits, the accident insurance claims the file of the criminal investigation. After learning about it, in 2010 she issued a court decision, reducing Jan W.’s right to daily allowance by 20% during the first two years (see article 37, § 2, LAA). The accident insurance justifies the reduction of the daily allowance on the grounds that Jan W. acted grossly negligent on the day of the accident. Jan W. accepts this reduction, following which his entitlement to the reduced daily allowance comes into effect.

Threat of reduction of LAA pension years later

After completing his primary rehabilitation at the CSP, Jan W. undertakes a retraining. At the end of this, the invalidity insurance first grants him a quarter pension with an AI degree of 41%, starting in 2013. The accident insurance aligns and, in 2013, also grants Jan W. an annuity according to UVG, with an AI degree of 41%. Both pensions are paid to Jan W. in full.

Unfortunately, Jan W.’s health deteriorated considerably thereafter. The invalidity insurance therefore carries out a review and in 2006 grants Jan W. a full pension with a new AI degree of 100%. Following this, the accident insurance examines for its part the right to the pension of Jan W. In 2017, it informs him that it recognizes the deterioration of his state of health and that it will pay him from the 1st March 2017 an LAA pension with a degree of disability of 55% instead of 41% as previously. Jan W. does not agree with the revision of the pension benefit carried out by the accident insurance and therefore turns to the Institute for Legal Advice of the ASP (ICJ). Based on the fact that invalidity insurance now recognizes an AI degree of 100%, the ICJ opposes accident insurance that Jan W.’s AI degree is greater than 55% and that he is therefore entitled to a higher UVG pension. What will follow then is hardly believable.

In February 2018, the accident insurance announces that it will maintain the previously defined AI degree of 55% and will additionally reduce the pension to which Jan W. is entitled from June 1, 2016 by 20%. Reason: the accident which occurred in 2009 was due

to a traffic violation, reason for which the pension can be reduced in accordance with article 37, § 3 of the UVG. On behalf of Jan W., the ICJ then opposed this pension reduction, decided for the first time by the insurance company nine years (!) after the accident. The accident insurance then takes no less than 20 months to announce, on November 1, 2019, that it will not reduce Jan W.’s UVG pension by 20% as initially suggested, but by 50%. Reason: the accident that occurred in 2009 was due to an extraordinary risk, which is why the pension can be reduced by half, in accordance with article 39 of the LAA. For Jan W., this would mean that only half of the LAA pension would be paid to him in the future. Because of the existential significance that this reduction would have for him, Jan W. files an appeal against the decision of the accident insurance. The procedure brought before the competent cantonal court is still ongoing.

Objection to the threat of reduction of the UVG pension years later

No need for long explanations to understand that from the point of view of Jan W., it is particularly shocking that the insurance company wants to reduce its UVG pension for the first time, more than ten years after the accident. This situation is all the more revolting since, after the motorcycle accident which occurred in 2009, the insurance

accidents had asked to see the criminal file, had examined it and, on this basis, had admittedly reduced Jan W.’s daily allowance by 20% during the first two years, but had paid without any reduction the UVG pension granted after daily allowance. The insurance company thus had all the information it needed to reduce Jan W.’s pension when it was paid for the first time. But she didn’t. Whether or not, given this initial situation, accident insurance can reduce Jan W.’s pension for the first time retroactively (more than ten years after the accident giving rise to the benefit) in the context of a revision of the UVG pension, is therefore questionable.

To justify itself, the insurance company relies on the fact that the state of health of Jan W. deteriorated considerably from mid-2016. Therefore, there is a ground for review within the meaning of section 17 of the LPGA which allows him to make a full review, in fact and in law, of the right to the annuity. The accident insurance thus refers to the case law of the Federal Court which stipulates that if there is a reason for revision, “the right to the pension must be fixed again on the basis of a state of affairs established in a correct manner and complete, without reference to previous evaluations” (cf. ATF 141 V 9 E. 2.3). Jan W. first challenged the legal position of the accident insurance in an appeal according to which, according to the case law of the Federal Supreme Court, “the purely different assessment of essentially identical facts is not relevant in the context of the right of revision” (see ATF 9C_699/2016 of March 13, 2017, E. 4.1). This means that the accident insurance, after having examined the circumstances of the accident based on the criminal file and after having waived a reduction in the pension when it was first granted, cannot assess the circumstances of the accident differently. accident years later. What the insurance company is doing is nothing more than suddenly evaluating in a completely different way a fact that it had evaluated for a long time and which has not changed in any way. In addition, Jan W. opposes the threat of reduction of the pension years later, that according to the case law of the Federal Court, “the authority of res judicata and entry into force relating to the conditions of the right to the benefit and on the definition of the performance assessment factors which relate to facts limited in time, (…) cannot be subject to review” (cf. ATF 136 V 369 E. 3.1. 1). The case law of the Federal Court also leads to the conclusion that only factors likely to change over time can be examined in the context of a review procedure, such as the state of health or income for example, but not the elements immutable, of which the circumstances of the accident form part, according to the opinion defended here. These cannot vary over time, such as health status or income, but always remain the same.

The circumstances of the accident, of which the insurance company was aware from the outset, are static factors which cannot change over time and are therefore not subject to re-examination within the framework of a review of the pension. All that remains is to wait for the decision that will be rendered by the Cantonal Court responsible for evaluating Jan W’s appeal. We will of course inform you of the outcome of this procedure in these pages.

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